20170725 TZHC Dar es Salaam

t IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 109 OF 2017 (Originating from Temeke District Court at Dar es Salaam; Criminal Cas~ No. 223/2015) .DANIEL TARARWA MOLLEL APPELLANT

VERSUS THE REPUBLIC ........• RESPONDENT

JUDGMENT Date of last order 17/7/2017 () Date of Judgment 25/7/2017 KITUSI,J On or about the 1st of April, 2015 a godown belonging to A to Z Textile Mills Ltd. was broken into and a number of items with a total value of Tshs. 49,336,095/= were stolen. Six months later, th.at is, on 9 th October, 2015, the police I r arrested Daniel Tarakwa Mollel in connection with the alleged breaking and stealing. · On . 23 rd October, 2015 Daniel Tarakwa Mollel, hereafter the appellant, ,vas arraigned for Warehouse Breaking contrary to section 293 and 296 of the Penal Code. In the second count he was charged for stealing contrary to section 258 and 265 of the Penal Code. 1 0 ' From the record of the trial there was no dispute that the appellant was working at A to Z Textile Mills· as a security guard, and that on 31 st Mach, 2015 at night the godown of the said factory was broken into and a substantial number of items got stolen from it. Two prosecution witnesses testified to the fact that the appellant was on duty on the date and at the time of the breaking and sealing. They are Shaibu Juma (PWl) also a security guard working with A and Z Textile Mills who said () he was on duty with the appellant. He testified on oath that when the bandits arrived, the appellant opened the gate for them and joined the group of villains so that he even left with them after the loot. The other prosecution

witness was Nyakioma Makori (PW4), also a security guard as the appellant and PWl. He was not on duty on the material date and time but testified on what he was told by those who claim to have been eye witnesses. One Joseph Laurent Fablandesi (PW2) the Branch Manager of A to Z Textile Mills went to the scene upon being informed by phone about the theft. A part from taking stock of the stolen items, he is also a witness to the fact that the appellant was. not there although he was supposed to be on duty. When he asked PWl about the 2 .- appellant's whereabouts, PW 1 told him about his active participation in the theft. On his part the appellant's version was that on the material date he was supposed to be on duty as stated by the prosecution witnesses but because of bereavement he was not at work. He stated that he called one of the security guards, with whom he was supposed to be at the sentry post, and infarmed him that he would not be reporting to work. () The appellant further stated that he had to travel to Manyara for the funeral and when he was back in Dar es Salaam a week later he made inquiries about work, by phone. A colleague told him that the employer had been inquiring for his whereabouts and had been heard saying that the appellant should be looking for another job. For this reason the appellant considered himself fired and went ahead to secure another

employment. On 8 th October, 2017 the appellant spotted PW2 in his car and went to greet him. It was at this encounter that PW2 learnt from the appellant that the latter had been employed by Keko DDC, and he promised to visit the place 3 on the following day. PW2 kept his promise but did so by sending police officers who arrested the appellant. The trial court found the appellant guilty 1n an . undeservingly brief analysis, which, given its brevity, I am tempted to reproduce:- "The accused person was required to use all reasonable means to prevent the commission of an offence, however he was the one who permitted thieves to break in and steal therein the properties of his employer. He is actively failed to do so. He absconded soon after allowing the thieves to steal his employer's properties. ..... The accused his conduct during the commission of offence by opening the gate and went out together with the th:ieves, shows he knows each and everything concerning the incident. To that extent I find the prosecution, have proved his case and thus find the accused guilty to both counts .:; .. " 4 The appellant was convicted and sentenced to 10 years for the first count and 7 years for the second count. He has appealed against both the conviction and sentence. His Petition of Appeal consisting of ten grounds demonstrates the appellant's grievances, although a great deal of it are

remotely relevant. Ms. Honorina Munishi, learned State Attorney who appeared before me for the respondent Republic, supported the appeal, but on two grounds only. These are lack of proof that the appellant (J was on duty and secondly the contradictory nature of PW l's evidence on the very issue of appellant's presence at the work place. The appellant who stood in person had nothing to say, naturally after hearing the learned State Attorney's support. I agree with the learned State Attorney that the decision of this appeal turns on fewer issues than those raised by the appellant, including the two submitted on by her. But before I go into the merits of the appeal I feel I have to make a small observation on the manner of recording evidence by the learned trial Resident Magistrate. During the hearing of this appeal Ms. Honorina Munishi, learned State Attorney expressed her support for 5 the appeal mainly on the grand that the prosecution did not prove that the appellant was on duty on the date of the alleged robbery. Coincidentally this is issue No. 1 in the Petition of Appeal. In the second ground the appellant is faulting the trial court for shifting the burden of proof into his shoulder to prove his alibi. In the sixth ground he complaints against the court's failure to note that the delay of seven (7) months in arresting him was not explained. I find these three grounds very

legitimate and sufficient to dispose of the appeal. I will start with the sixth point. The law is settled that failure to name a known suspect at the earlier opportunity tends to raise eyebrows as to the genuiness of the charge against that person. I had the occasion to say this in Juma Elisha Versus Republic, Criminal Appeal No. 161 of 2014, High Court Dar es Salaam Registry (unreported) in which I cited the case of Venance Nuba and another Versus Republic, Criminal Appeal No. 425 of 2013 (unreported). In this case there is absolutely no evidence that the appellant was a fugitive being hunted down by anyone in 6 connection with the alleged robbery, and that makes the negative inference for the delay in arresting him very irresistible. Therefore I will uphold the sixth ground and treat the delay in arresting the appellant, a supposedly known culprit, as pointing to an uncertainty as to whether he was the culprit or not. I now turn to the issue of alibi which raises the question whether it was appellant's duty to prove it. I must say at once that I am not too amused by the way the learned trial magistrate approached this issue, and I am in total agreement with the appellant. Ms. Munishi appeared to suggest that although the defence was raised against the procedure, it introduced a reasonable doubt, anyway. I think the procedure which the learned State Attorney was referring to

is section 194 (4) of the Criminal Procedure Act, Cap 20 which requires a prior notice to be given by the accused. However non-compliance with section 194 (4) of CPA was not the trial court's reason for disregarding the defence of alibi. The trial court's reason is this:- 7 "DWl Daniel Tarakwa (accused) denied to have broken the godown and he stated that on the material date, he was at burial ceremony starting from Keko Bora to Manyara, but he has failed to prove that he was not at working place". If the court had ignored the defence of alibi for its not being preceeded by a notice, that would have been in keeping with the settled position of the law. The Court of Appeal has provided two options of dealing with alibi when it is raised by the defence. It was stated in the case of Ludovick Sebastian Versus The Republic, · Criminal Appeal No. 318 of 2007, CAT at Tabora (unreported):- "We understand it to mean that when an accused person does not give notice of alibi, the court has two options, either to ignore it and accord no weight at all or take cognizance of the defence. If the court decides to take cognizance of the defence it is duty bound to subject it to a critical analysis and give reasons for rejecting it." 8 In the instant case the learned trial magistrate took cognizance of the alibi but then her analysis of that defence violated the cardinal principle of criminal law

that places the duty of proof on the prosecution's shoulders. What is worse in my view, the learned trial magistrate proceeded from the premises that there was proof that the appellant was on duty on the material day. The prosecution had not discharged the duty to prove that the appellant was on duty, and I am in total agreement with Ms. Munishi on this II point. For the foregoing reasons, I allow the appeal. The conviction is quashed and the sentences are set aside. The appellant should be set free unless otherwise lawfully held. 9